Croft v. Doe ex dem. Thornton

HARALSON. J. This was a common law action by Doe ex demise Mary L. Thornton v. Cooper Croft. Separate demises are laid in Henry J. Thornton -as executor of N. M. Thornton, deceased, in the heirs at law of said N. M. Thornton, and in the plaintiff, Mary L. Thornton, the devisee, of the lands sued for, under the last will and testament of her father, the said N. M. Thornton, and the urantee of said lands in a deed from George 1-Ten394 drix and wife. In support of her title the plaintiff .introduced a patent from the United States to the said George Hendrix, her grantor, dated February 1, I860; a deed with -covenants of warranty o'f title from said George Hendrix and wife 'conveying said lands to plaintiff, of date December 6, 1897; a deed with covenants of warranty from George Hendrix and wife to James T. Camp, of date, 22d December, 1859, to a part of said lands; a deed with covenants of warranty by Camp and wife, .conveying all of said lands to said N. M. Thornton, the ancestor and devisor of the same to plaintiff, of date, January 2Ó, I860; the record of the will of said N. M. Thornton, the probate of which in Georgia and in this .State was duly proved, devising said lands to her, and letters testamentary to said Henry J. Thornton, of date, April 1, 1889. 2. When the deeds from Hendrix and wife to Camp, .and from Gamp and wife to N. M. Thornton were offered in evidence, the defendant objected to the introduction of each, separately, on the ground that the evidence .showed that the property belonged to the government of the United States at the date they were severally executed, and on the further ground that defendant who claimed the lands under what purported to be a deed, .of date 28th May, 1897, from Hendrix and.wife to him, .of a date later than either of said deeds introduced by plaintiff, had no notice of plaintiff’s said deeds. The •objection to the introduction of these deeds, however, on the first ground as specified — 'that at the date of their execution the title was in the government — was properly overruled, since each of the deeds contained covenants of warranty of title, and when the patent issued to Hendrix it enured at once to his grantee. — Swann v. Gaston, 87 Ala. 569; Sayre v. Sheffield L. I. & C. Co., 106 Ala. 440. The second ground of objection was also without rnexfit, as will fully appear. 3. A demise was properly laid in Henry J. Thornton, the executor of N. M. Thornton, deceased, since he was authorized to maintain any action at law for the recovery of land that the heir or devisee of his testator could maintain. — Landford v. Dunklin, 71 Ala. 595; Leather395 wood v. Sullivan, 81 Ala. 459; Pendley v. Madison, Admr., 83 Ala. 484. It is also well understood that in .an action of ejectment, the, plaintiff may recover by showing the legal title to be in any one of the persons in whom a demise is laid.— Glidden v. Doe, ex. dem. Andrews, 10 Ala. 167; Stringfellow v. T. C. I. & R. R. Co., 117 Ala. 250; Tyler on Ejectment, 389, 390. 4. The plaint! If proved by these deeds, title, as in one •or more of the demises laid, to all the lands sued for, and this is not denied by defendant. The evidence tended to show that plaintiff, and those under whom she claimed, had the 'actual possession of said lands for over thirty years, claiming and exercising acts of ownership over them, and continued in such actual possession until the intrusion of defendant, on a very small portion of the land, under what he claimed as a deed to the whole tract from -said Geo. Hendrix and wife of date, 28th May, 1897. The defendant’s proof consisted of said instrument'ptiiporting to be a deed to the lands, to which the names, of G. W. and D. A. Hendrix are attached at the foot. The name of the grantee in the deed — the defendant in this case — was signed as a witness thereto, .and the court, because it appeared that the vendee or -grantee in said deed was the same person as the. attesting witness, refused, on objection of plaintiff, to allow the said instrument to be introduced in evidence. A grantee in a deed of conveyance of property is not competent to attest it as a witness. — Coleman v. The State, 79 Ala. 49. This eliminated said instrument from the defense as a muniment of title. ‘The only other defense open to defendant, and which he set up, was that he was in adverse possession of the lands, claiming to own the same; that the said instrument, though defective as a conveyance, was admissible to show color of title, and possession of the property, co-extensive with the boundaries of the property described by the intrument under which he claimed to hold, citing Normant v. Eureka Co., 98 Ala. 181; Torrey v. Forbes, 94 Ala. 135. In the case of Norman t, just cited, it was held in this connection, “that the mere possession of land is not prima facie adverse to the title of the true owner. To [396] have that effect, it must be shown that the true owner knew that the adverse holder claimed in his own right, or the possession must be so open 'and notorious as to raise the presumption of notice.” There was no evidence tending to show that the plaintiff ever knew of any claim to the lands by defendant. The plaintiff’s witness, N. J. Thornton, who had charge of said lands for her, testified that he did not know defendant was claiming the land, and the first time he heard of his being on the land ivas in January, 1897. (This date is evidently intended for January, 1898, for defendant testified that he moved on the place the latter part of 1897, and the instrument from Hendrix under which he claimed, as we have seen, bore date 28th May, 1897.) Defendant did not testify to any fact tending to show that plaintiff ever had any knowledge or notice of his presence on the land or his claim thereto. Nor did he testify to any fact tending to show the character of his claim and possession, further than that there- wei'e about four acres cleared on the place and enclosed, but he did not even state that he cleared and enclosed these four-acres. He did testify that he cut timber all over the land and went to work on it immediately after he traded for it; and for aught appearing, he was a bare tresspasser in so doing. The instrument, in form a deed from Hendrix, under which he sought to claim, does not recite any consideration, further than “for and in consideration of the full payment in hand by the said party of the second part,” etc. He swore on the cross-examination that he paid Hendrix ten dollars, part in rnonéy and part in provisions, but how much in the one or the other he did not state. This evidence of his, not creditable to his claim, falls far-short of showing possession adverse to the plaintiff.— Authorities supra; Rivers v. Thompson, 46 Ala. 33; Beasley v. Howell, 117 Ala. 500; Parks v. Barnett, 104 Ala. 438; Newell on Ejectment, 728, 729. 5. It is claimed again by defendant, that the deed from Hendrix to plaintiff, of date, 6th December, 1897, was executed while defendant was in possession, holding adversely to plaintiff, and was therefore void. If the principle invoked 'were available to defendant in this397 case, which, is denied by plaintiff under the demise laid, it is not applicable here, for the reason, as just shown, that the defendant was never in possession of the land claiming adversely to plaintiff. As was said in Bernstein v. Humes, 71 Ala. 260: “To avoid a deed by one out of possession, it is enough if there be one in adverse possession exercising acts of ownership and claiming to be rightfully in possession. Color of title is not necessary. Possession to have that effect must be actual, not constructive.” — Parks v. Barnett, 104 Ala. 438; Sharpe v. Robertson, 76 Ala. 242, 246. The court tried the case without a jury and rendered a judgment for the plaintiff, and in this ruling we find no error. Affirmed.